Sghendo v Mann No. DCCIV-98-1332

SGHENDO v MANN
[2001] SADC 19

Judge Robertson
Civil

Nature of the Proceedings

The Plaintiff was injured in a road accident on 25 September 1995. The accident occurred at the junction of Welland Avenue and Port Road at Welland. At the time of the accident the motor vehicle being driven by the Plaintiff was stationary at the junction. His wife was in the car with him. Whilst the vehicle was stationary, a motor vehicle travelling along Port Road veered across the road and came into collision with the Plaintiff’s motor vehicle. As a result of the collision the Plaintiff suffered injuries to his right shoulder and lower back. He also suffered an abrasion to the right forehead and a contusion to the right rectus femoris. The Defendant has admitted liability. The purpose of the hearing was to have the Plaintiff’s damages assessed.

Plaintiff’s Injuries and Treatment

At the time of the accident, the Plaintiff was employed with Boral Energy as a labourer/maintenance worker. He was 45 years of age. The Plaintiff had migrated from Malta about 1971. He obtained employment with the South Australian Gas Company (“SAGASCO”) shortly after he arrived in Australia and maintained his employment with SAGASCO, and thereafter with its successors Boral Energy and Origin Energy up to the present time.
Immediately after the accident the Plaintiff experienced pain in his right shoulder and lower back. He received some emergency treatment on that day. On the day following the accident he consulted his general practitioner, Dr Tsavdaridis. The Plaintiff was initially off work for four days. When he returned to work he was placed on light duties on the recommendation of Dr Tsavdaridis. The Plaintiff continued to suffer pain and restriction to his right shoulder and his lower back. The Plaintiff received physiotherapy treatment on the recommendation of Dr Tsavdaridis. As there was no apparent improvement to the pain and restriction that he was suffering to the right shoulder, Dr Tsavdaridis referred him to Dr Saies, an orthopaedic surgeon specialising in that area of the body.
Dr Saies saw the Plaintiff in late November 1995. He thought that the Plaintiff was suffering from rotator cuff tendonitis and impingement. Dr Saies treated the Plaintiff with an injection into the shoulder which gave the Plaintiff some temporary relief. However, the pain and discomfort returned a short time later. Due to the ongoing pain, discomfort and restriction that the Plaintiff was experiencing, Dr Saies considered that surgery was necessary. The Plaintiff underwent an arthroscopy in April 1996. Dr Saies noted during the surgery a superior surface rotator cuff partial tear with associated inflammation and impingement syndrome. A procedure known as a acromioplasty was performed in which some of the bone was shaved above the tendon to allow more room for the tendon.
Post-operatively the Plaintiff remained off work for approximately three months. He felt that the shoulder had not improved. He still suffered pain and discomfort and there was restriction in the movement of the shoulder. Following review of the Plaintiff, Dr Saies noted that the Plaintiff was still suffering difficulties with his shoulder. The Plaintiff said in evidence that he continued to suffer regular pain with the shoulder and still does to the present time. He said that he continues to suffer restriction in movement of the shoulder. It was also the Plaintiff’s evidence that the pain in the shoulder becomes more severe after activities where the shoulder is used.
Dr Saies reviewed the Plaintiff on a number of occasions up to and including a time in January 2000. He continued to observe impingement in the shoulder motion. Dr Saies said that the cause of the pain and restriction of movement in the shoulder is that the tendon becomes inflamed and swollen and pinches up against the bone above the tendon. It was his view that there were a number of physical activities which were likely to increase the pain in the Plaintiff’s shoulder. He said that working at or above shoulder height would cause pain, as would lifting objects of a heavy nature or lifting of a repetitive nature. Dr Saies also said that other specific activities such as using a crowbar would place high demand on the shoulder and therefore cause pain. It was his opinion that the Plaintiff had a fifteen percent permanent residual impairment of the shoulder function.
Whilst the Plaintiff was receiving treatment for his shoulder, he continued to suffer pain in his lower back. As a result of the difficulties with his lower back, Dr Tsavdaridis referred the Plaintiff to Dr Hillier, an orthopaedic surgeon. This was in April 1996. Dr Hillier treated him by way of a facet joint injection which gave the Plaintiff only temporary relief. The Plaintiff continued to see Dr Hillier for some time, and in May 1997 the Plaintiff received an epidural injection at level 4-5 of the lumbar spine. Once again, this injection only provided the Plaintiff with temporary relief.
In 1998 and again in late 1999, the Plaintiff consulted Dr Osti, an orthopaedic surgeon, regarding the ongoing pain and discomfort in his lower back. Dr Osti formed the opinion that the Plaintiff’s spinal condition was in keeping with a symptomatic intervertebral disc degeneration at the level of L4-5 in association with apophyseal joint dysfunction. It was his view that the aggravating effect of the motor vehicle accident caused pre-existing degenerative changes to become symptomatic. Dr Osti was of the opinion that the Plaintiff was suffering from permanent impairment of lumbar spine function quantifiable at ten percent.

Plaintiff’s Employment Before and After the Accident

I mentioned earlier that at the time of the accident the Plaintiff was employed as a labourer/maintenance worker with Boral Energy. He was working in a team of three men and was involved in the maintenance and repair of gas pipes. His work also involved him in the laying of new gas pipes. His duties included joining gas pipes and general labouring work, including digging and the use of jackhammers.
The Plaintiff returned to work four days after the accident and was placed on light duties as a result of Dr Tsavdaridis certifying him to be only fit for light duties. He worked in Boral Energy’s yard at Brompton, servicing small machinery. He had never undertaken this type of work before. He continued to be engaged in light duties up to the time of his shoulder surgery. After his return to work following the shoulder surgery he continued to perform light duties. Eventually, he became tired of being engaged in light duties and requested that he be returned to the maintenance and repair work that he did before the accident. This occurred some time in the latter half of 1996. When he did return to working in a team of three, he was medically restricted in his work practice. He did not operate the jackhammer. The Plaintiff was also restricted to lifting weights of less than five kilograms and pick, shovel and crowbar work. He did not use a machine called a “whacker”, which was used to compress soil in trenches. The use of the jackhammer and the whacker would have caused substantial discomfort to his shoulder. Later, the Plaintiff commenced using the crowbar. He modified his manner of using the crowbar in an attempt to avoid causing aggravation to the shoulder. Since his return to working in a team he has continued to do so to the date of the Trial. However, from about December 1998 he has been employed as a pipe layer and fitter on new homes.

Findings on Witnesses

Having outlined the relevant matters from the time of the accident it is appropriate that I pause and say something about the witnesses, other than the medical witnesses. The central witness in the trial was the Plaintiff. I found him to be a truthful witness. He was vague regarding dates when events occurred, or when changes involved with his employment took place. His memory regarding the extent of overtime performed by him after he returned to full-time work was, at times, confused. It is clear that he performed more overtime after the accident than he could recall. However, taking this into account these imperfections, I found him to be a witness upon whose evidence I could generally rely. I did not feel that he overstated the extent or effects of his injuries. I formed the view that he has continued to function as best he can, subject to the restrictions caused by the injuries he suffered in the accident.
The Plaintiff’s wife, Katie Sghendo, tried to assist me. She was vague on occasions. I found her to be a truthful witness. I felt that each of the other witnesses also tried to assist me. I found each of them to be truthful and reliable witnesses.

Heads of Damages Claimed

I now turn to consider the specific heads of damage claimed by the Plaintiff. Those heads are:

·.. Pain and suffering and loss of amenities and enjoyment of life.

·.. Loss of earning capacity to the date of trial (past loss) and thereafter (future loss).

·.. Gratuitous services provided by the Plaintiff’s wife.

·.. Future medical expenses.

There is no claim for special damages as I was told that all special damages have been paid.

Claim for Pain and Suffering

I have earlier described the Plaintiff’s pain, discomfort and restriction to his injured shoulder and back. With respect to his injured back, he has also suffered pain in his right leg and in the foot. He said that whilst he continues to work as a pipe layer and fitter he does suffer pain during the course of some work activities. He has to be careful with his back. He tries not to bend as he did before. He now tends to kneel down when he is required to work lower to the ground. He works more slowly and is careful when walking over rough areas as that tends to irritate his back. He said he cannot sit down for very long. The Plaintiff said that at times he suffers considerable pain in his back at the end of a day’s work. He said at worst, on those occasions, he can hardly walk at the end of the day. He goes home and has a hot shower to ease the pain. The Plaintiff’s team leader in the team in which he currently works, Joey Vassallo, said that he has observed the Plaintiff getting up and moving about at work, and at the same time complaining of pain.
Since returning to work as part of a team after the accident the Plaintiff undertook, on occasions, considerable amounts of overtime. He has also worked on his house, doing painting, bricklaying and other activities. He said that with the activities in his house, he performs them more slowly and if the pain becomes too difficult to deal with then he will cease his activity. Whilst acknowledging that he has shown a capacity to continue to work and to engage in overtime work and to work about the house since the accident, I accept that these activities aggravate his injuries and cause him pain. I accept his evidence regarding the pain and discomfort which he says he suffers in both the shoulder and the lower back.
I referred earlier to the opinions of Dr Saies, regarding the Plaintiff’s shoulder, and Dr Osti, regarding the Plaintiff’s lower back. The Defendant called Dr Garth Fraser, an orthopaedic surgeon, who has seen the Plaintiff for medico-legal purposes. There was much common ground in the opinions offered by Dr Fraser and those of Dr Saies and Dr Osti, however, there are some differences.
With respect to the Plaintiff’s shoulder, Dr Saies was of the opinion that the Plaintiff was suffering fifteen percent residual impairment of shoulder function. He said that the impairment was multi-factorial. It was Dr Saie’s opinion that the accident had caused ninety percent of that impairment and the pre-existing changes which he had observed in the shoulder caused ten percent of that impairment. On the other hand, Dr Fraser was of the opinion that the level of impairment of the shoulder was ten percent and that the motor vehicle accident and the pre-existing changes in the Plaintiff’s shoulder were equally responsible for that impairment.
I prefer the opinion of Dr Saies. He had an advantage over Dr Fraser in that he was the treating surgeon. This advantage became evident when he indicated that he was more confident to attribute a higher degree of involvement of the accident in the Plaintiff’s shoulder impairment because during the course of surgery he had observed changes of an acute nature within the rotator cuff which must have been caused by the trauma that the Plaintiff suffered at the accident.
There was a further area of disagreement between Dr Saies and Dr Fraser. It was Dr Fraser’s opinion that because of the erosive changes in the rotator cuff and the type of work activities which the Plaintiff undertook in his employment, problems with the rotator cuff would have emerged within four to five years at the maximum if the accident had not occurred. He expressed it in terms of the rotator cuff problem becoming symptomatic. He did not explain in what manner and to what degree the shoulder would have become symptomatic. Dr Saies said that it was highly likely that the Plaintiff would have developed symptomatic rotator cuff disease in his right shoulder at some time before age sixty-five. He said that if that had occurred it would have been a different presentation than the acute symptoms the Plaintiff experienced following the accident. Dr Saies indicated that there would have been a gradual onset of shoulder pain and increased difficulty in performing the higher demand work activities. It was Dr Saies’ opinion that the onset of the symptoms would have been dependent upon a number of factors, including work, recreational, and domestic activities. He said he could be no more definite than that and he could not agree that five years would be the time frame.
I also prefer the opinion of Dr Saies to that of Dr Fraser on this topic. His explanation of how the onset of symptoms would emerge and the cause of those symptoms is most convincing. Dr Fraser did not explain how he could be so dogmatic concerning the time of the emergence of any symptoms. I find it difficult to see how he could be so dogmatic. Dr Saies also had the opportunity of observing the state of degenerative change of the Plaintiff’s shoulder at the time of the surgery. I am not prepared to find that the Plaintiff would have suffered some symptoms in his shoulder within four to five years. All I am prepared to find is that at some time, and probably later than five years, the Plaintiff would have suffered an onset of pain in the shoulder, if the accident had not occurred.
I mentioned earlier that Dr Osti’s opinion was that the Plaintiff’s lower back problem was consistent with symptomatic intervertebral degeneration, mainly at the L4-5 level of the spine, in association with apophyseal joint dysfunction. He said that this degeneration became symptomatic as a result of the aggravating effects of the motor vehicle accident on the pre-existing degenerative changes. I should pause to say that there is no evidence that the Plaintiff suffered any lower back symptoms of this nature prior to the accident. Dr Osti said that he assessed the impairment at ten percent of the Plaintiff’s lumbar spine function and that that assessment included pain to either lower limb. He described the level of disability as being moderate. Dr Fraser was of the opinion that the degenerative changes in the Plaintiff’s back had been aggravated by the trauma suffered by the Plaintiff in the accident. He described the Plaintiff’s lower back impairment as being of a minor nature. He assessed that physical impairment as being five percent of the function of his lower back and said that the motor vehicle accident was accountable for approximately two percent of that impairment.
I prefer the opinion of Dr Osti when he describes the level of disability of the Plaintiff as being moderate. Such a description accords with the Plaintiff’s evidence regarding the difficulties that he suffers with his back. I have accepted that evidence. I also accept Dr Osti’s assessment of impairment as ten percent of the Plaintiff’s lumbar spine function.
The Plaintiff’s shoulder pain and restriction arose as a result of the trauma he experienced in the accident. However, as I said earlier, I accept Dr Saies’ opinion that it was highly likely that, without the accident, his shoulder would have become symptomatic at some time prior to the Plaintiff reaching the age of sixty-five. This will need to be taken into account in assessing damages for pain and suffering and some other heads of damages(Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638). It cannot be said with any degree of accuracy when problems with the shoulder would have emerged. All that can be said is that there was a high probability that the degenerative changes would have finally become symptomatic before the Plaintiff reached sixty five years of age.
With respect to the Plaintiff’s back, I find that the trauma suffered by the Plaintiff in the accident resulted in an aggravation of the degeneration in the Plaintiff’s lower spine, which caused it to become symptomatic. There is no medical evidence to indicate that the Plaintiff’s degenerative condition in his spine would have become symptomatic in the future but for the accident. However, the possibility of that occurring is a factor which must be taken into account.
The Plaintiff has suffered a significant degree of pain and discomfort with respect to his shoulder and back. He has also suffered restriction. The Plaintiff has undergone surgery to the shoulder with all the pain and discomfort associated with such surgery. He has also endured injections to his lower back and an injection in his shoulder. He continues to suffer regular episodes of pain both in his back and shoulder. These problems restrict his capacity to undertake activities about the house as he did before the accident in the sense that now when activities cause pain and discomfort he is required temporarily to terminate such activities.
The Plaintiff’s work aggravates his back from time to time to the extent that, at times, he experiences considerable difficulties at the end of a working day. His work activities also cause aggravation to his shoulder condition. He will continue to experience the levels of pain and suffering to which I have referred whilst he continues to work. I accept his evidence that he wishes to continue to work. After he has ceased work he will still suffer a degree of pain and discomfort from his injuries, depending upon the activities which he engages in.
For the Plaintiff’s claim for pain and suffering and loss of amenities and enjoyment of life there must be ascribed a numerical value pursuant to Section 35A of the Wrongs Act 1936 (as amended). The number I ascribe is thirteen. For the purposes of assessing damages under this head the prescribed sum, under the Wrongs Act, is $1,450. I therefore assess damages under this head at $18,850.

Claim for Loss of Earning Capacity

I now turn to the Plaintiff’s claim for loss of earning capacity, both past and future. To establish his entitlement to damages for loss of earning capacity the Plaintiff must first establish that his earning capacity has in fact been diminished by reason of an injury caused by the negligence of the Defendant. Secondly, the Plaintiff must establish that the loss or diminution of earning capacity is, or may be, productive of financial loss (Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 3).

Past Loss of Earning Capacity

I mentioned earlier that the Plaintiff returned to work four days after the accident. The Plaintiff has continued in his employment from that time to the present, except for the period of his surgery and convalescence. The Plaintiff’s claim for past loss of earning capacity is confined to income lost in the following circumstances:-

·.. Loss of overtime.

·.. Loss of stand-by work.

·.. Loss of additional income which could have been earned by the Plaintiff by working longer hours.

He also claims damages for loss of a chance to use sick leave entitlements due to his use of sick leave entitlements with respect to his accident injuries.

To understand the items of loss claimed by the Plaintiff for past loss of earning capacity, it is necessary to refer briefly to the nature of the Plaintiff’s employment and the terms of his employment, both before and after the accident.
In the period prior to the accident the Plaintiff’s salary came from three sources. He would receive a weekly salary for the eight hour day that he worked each day of the working week. He would also be paid for overtime, being for work he performed outside the normal hours of employment. Such overtime would usually arise at the end of a working day and also on weekends. The final source of income was what has been described as stand-by work. This work was emergency work which arose at night time or on weekends. Employees, such as the Plaintiff, would agree to do stand-by work. This required the employee to remain on stand-by at home at night time or on the weekends, as the case may be. If the employee received a call that required attendance at emergency work then the employee was obliged to attend as part of a team to perform the emergency work. For the purpose of the employee’s salary, the emergency stand-by work performed by the employee was classified as overtime, in the same way as any work performed outside the regular hours was classified as overtime. In addition, the employee would also receive payment of nine dollars a night and twenty dollars for a Saturday or a Sunday, for remaining home on stand-by.
This system of employment prevailed until Boral Energy, the successor to SAGASCO, introduced an employment scheme of an entirely different nature. It was referred to as the Probis Scheme. The Scheme was a productivity bonus incentive scheme agreed upon between Boral Energy and the relevant Union. It commenced to operate with respect to work classified as new services and mains replacement work in March 1997.
For new services and mains replacement work the Scheme provided for a team of three operators. A team leader and a field operative, both of whom were employed by Boral, worked together with an independent contractor who operated a backhoe and provided other services. Each of the employees of Boral would receive a base salary for work performed and would receive bonus payments for additional work. The Scheme operated on the basis that the more work a team did then the more bonus payments they would receive. In other words, it was a productivity based form of employment.
I stated earlier that after the Plaintiff’s return to work he was placed on light duties. He remained on light duties until the latter half of 1996, when he returned to working in teams doing the same maintenance work that he had performed before the accident. After his return, he was not assigned to a permanent team. He described himself as being a floating member of the teams. By that he meant that he would move from team to team, depending upon the circumstances. During the time he was on light duties, he was not permitted to do any overtime work or stand-by work. Upon his return to full duties within a team he recommenced working overtime. As I said, this overtime would involve working beyond the regular hours during the five day working week and would involve working on weekends, mainly Saturdays. Although he was working overtime, the Plaintiff’s employer would not permit him to do emergency work under the stand-by system. This generally required heavier work than overtime work because it was usually performed late at night and a backhoe could not be used. In any event, the Plaintiff said that he could not have physically been able to perform the stand-by work because of his shoulder.
In December 1998 the Plaintiff joined Joey Vassallo as part of a team, together with a backhoe operator, under the Probis Scheme. He was moved from maintenance work to work involving the providing of gas services to new and existing homes. As a result of this move, stand-by work was not available because it was not part of the Probis Scheme.

Claim for Loss of Overtime and Stand-by Work

The Plaintiff’s claim for loss of overtime income is for the period 16 November 1995 to 18 July 1996. This is the period when the Plaintiff was on light duties. The Plaintiff claims a gross amount of $6,732.25. After deducting twenty five cents in the dollar tax the Plaintiff’s claim is $5,049.18. The Plaintiff also claims loss of stand-by emergency work for the period 24 November 1995 to July 1998. The claim is for $9,297.20 gross less twenty five cents in the dollar taxation, leaving a net amount of $6,972.75.
The Defendant says that these two items of loss should not be considered separately. Mr Ward submitted that to determine the Plaintiff’s total loss for these two items, comparisons should be made between the Plaintiff’s overtime earnings for the financial year 1994-1995, the year prior to the accident, and the financial years 1995 - 1996 and 1996-1997. Acknowledging that the Plaintiff’s overtime earnings for the financial year 1994-1995 was greater than the other two financial years, Mr Ward submitted that the Plaintiff should receive, by way of damages, the difference between the earnings for each of those latter two years. He further submitted that whilst the Plaintiff’s claim for stand-by work included a period in the 1998 financial year, this year should not be included as part of the calculations because the overtime income for the 1998 financial year exceeded the overtime income for the 1994-1995 financial year.
I do not accept that this method of assessment is appropriate. The Plaintiff gave evidence that when he returned to work he obtained a record of each occasion when a team in which he was involved went out and undertook stand-by work. He was unable to participate as a member of the team when stand-by work was undertaken. There were two reasons for this. First, he was not permitted to undertake stand-by work whilst he was on light duties. Later, when he returned to full duties, he was not permitted by his employer to undertake stand-by work because of his injuries. A schedule was admitted into evidence recording the number of hours lost and the salary the Plaintiff would have received if he had undertaken stand-by work. This evidence allows the Plaintiff to distinguish between overtime lost during the period he was on light duties and stand-by work he lost after the accident. Accordingly, it is appropriate to assess damages with respect to each type of loss.
Mr Britton, Counsel for the Plaintiff, submitted that the appropriate methodology for determining the loss of overtime work was to calculate the average gross weekly overtime payments for a period 17 March 1994 to 9 November 1995, apply the result to the number of overtime weeks lost between the period 16 November 1995 and 18 July 1996 and then make an allowance for taxation liability. In accordance with that methodology he calculated the gross loss for that period at $6,732.25 and the net loss after tax at $5,049.18. However, a closer examination of the method indicates there is an element of double counting. The evidence is that the pre-accident figures for the Plaintiff’s overtime included amounts for what can be described as traditional overtime and amounts for stand-by income earned by the Plaintiff. As the exercise is confined to the calculation of the Plaintiff’s loss of overtime, in contrast to his loss of stand-by income, then the stand-by income should be extracted from the pre-accident overtime figures. Unfortunately, the evidence does not identify the amount of stand-by income which was included in the overtime income for the period 17 March 1994 to 9 November 1995. As a result there will need to be a broad axe reduction from the amount calculated by Mr Britton. The only relevant factor which can be concluded from the evidence is that the overtime income was significantly more than the stand-by income. Finally, there should be a discount to take into account that the Plaintiff may have been prevented from undertaking overtime work on some occasions due to a minor illness or for some other reason. I assess the Plaintiff’s loss of overtime at $3,500.
It was submitted on behalf of the Plaintiff that the method for calculating loss of income due to his inability to perform stand-by work was, in the first place, to calculate the loss of gross salary for the number of hours which the Plaintiff would have worked stand-by on each day that a team of which the Plaintiff would have been a member undertook stand-by work. The Schedule to which I earlier referred recorded these lost hours and the pay lost. The gross loss of income for the period 24 November 1995 to 16 May 1995, using that methodology, is $9,297.20 and the net loss, after deduction for taxation, is $6,972.75. I accept that is the appropriate way of assessing the Plaintiff’s loss. However, in my view, there needs to be some discount to take into account that the Plaintiff may not have been able to work on each of the nights in which the team he would have been involved with performed stand-by work. Some minor illness or other reason may have prevented him from going out to perform the emergency work. Accordingly, I assess the Plaintiff’s loss of stand-by work at $6,200.

Claim for Loss of Additional Income Under The Probis Scheme

I mentioned earlier that the Probis Scheme involved a team leader, a field operative, and an independent contractor. In the Plaintiff’s team, after Probis was introduced, he was the field operative and Joey Vassallo was the team leader. Each of them were paid, and are presently paid, a base salary. The team leader received, and still receives, $5,000 more in his base salary than the field operative.
As part of the Probis Scheme, the members of the team can earn bonus income. Generally, the system works on the basis that the more work performed by a team, the more bonuses they receive. The bonuses are divided equally between the team leader and the field operative.
Mr Cronin, a Manager with the Plaintiff’s employer, gave evidence concerning the Probis Scheme. He said that in the area of new home work and mains replacement, there is sufficient work for a team to be engaged six days a week. He said there were one or two teams who worked harder and longer hours, by choice, than others. In so doing, they are able to earn more income. Mr Cronin said that a field operative in one of these teams could earn up to $68,000 gross per annum. That operative would have a similar base salary to the current base salary of the Plaintiff, which is $32,000.
The Plaintiff’s gross salary for the year ended 30 June 2000 was $44,254. In the financial year ended 30 June 1999, being the first year in which the Plaintiff worked under the Probis Scheme, the Plaintiff’s gross salary was $49,168. It was Mr Britton’s submission that the Plaintiff’s team was not earning income similar to that of the hard-working teams because the Plaintiff’s injuries prevented the Plaintiff working at any greater level. Mr Britton formulated the claim on the basis that the Plaintiff’s weekly loss was $251 net. This was calculated by comparing the Plaintiff’s annual salary to that of the field operative in the hard working team. He said that loss covered the period commencing December 1998 being the time the Plaintiff joined the Scheme, to the date of trial.
The short answer to this claim is that there is no evidence to support the proposition that the Plaintiff was not earning income similar to that of the field operative in a hardworking team was because his injuries prevented him from working at a level greater than he has done and is currently doing. Mr Cronin pointed out that the amount of income earned by the team leader and the field operative in a team was a matter of choice. In other words, the team chooses the level of extra work that they are prepared to perform. The Plaintiff did not indicate that he was prepared to work additional hours, but was unable to do so because of problems arising from his injuries. Joey Vassallo, the team leader, did not state that the team desired to perform additional work, but was held back by the Plaintiff’s inability to work extra hours. It would be expected that both the Plaintiff and Mr Vassallo would have given evidence of that nature if that was the case. Accordingly, in the absence of evidence, I reject this item of the Plaintiff’s claim.

Claim for Loss of Sick Leave Entitlements

The Plaintiff claims that he used his sick leave entitlements in taking time off from his employment due to his injuries and therefore he is entitled to damages for loss of a chance that the Plaintiff might need to use his sick leave entitlements in the future for some cause unconnected to his injuries and be compelled to take leave without pay. Unfortunately, there is not sufficient evidence to support such a claim. There is evidence that from the time of the accident until June 1999 the Plaintiff has taken sick leave and been paid for it. The evidence does not disclose the nature of the sick leave which the Plaintiff has taken. Much of the sick leave taken was for isolated and seemingly unconnected days. There is one period from April 1996 to July 1996 amounting to a total of fifty nine days of sick leave. It seems clear that this period was when the Plaintiff was recovering from his shoulder surgery. However, other than that, the evidence does not indicate if the Plaintiff’s need for sick leave arose as a result of the injuries he suffered. There is not any evidence to suggest that the Plaintiff was entitled to accumulate his sick leave from year to year. In other words, the evidence does not disclose that the sick leave would have remained available to the Plaintiff if he had not taken. Without evidence of this nature, this head of claim must fail.
By way of summary I allow the Plaintiff’s claim for past loss of earning capacity for the following:-

·.. Loss of overtime income $3,500

·.. Loss of stand-by income $6,200

I therefore assess the Plaintiff’s claim for past loss of earning capacity at $9,700.

Future Loss of Earning Capacity

I have already detailed the Plaintiff’s injuries and their sequelae. However, I will need to make further reference to these matters in dealing with the Plaintiff’s claim for future loss of earning capacity.
It is beyond challenge that the injuries suffered by the Plaintiff have diminished his earning capacity. The combination of the two injuries has had the effect that the Plaintiff is restricted in some work which can be described as heavy in nature. He had no difficulty in performing work of a heavy nature prior to the accident. I accept the evidence of Dr Osti that the Plaintiff should avoid tasks requiring prolonged overhead work, prolonged lifting over fifteen kilograms, prolonged repetitive forward bending, and driving for long distances. Dr Osti is of the opinion that the Plaintiff should restrict exposure to heavy physical work because, in the long term, it will not be good for his back pain. In other words, such work would cause pain and discomfort in the Plaintiff’s back to increase. Dr Saies has also provided the opinion that some of the work activities of the Plaintiff aggravate the Plaintiff’s shoulder. The Plaintiff identified these problems in his evidence. The Plaintiff’s injuries to his back and shoulder have left him with a reduced earning capacity. He cannot perform physical labour at the level he could prior to the accident.
As a result, the question for determination here is whether the diminution of the earning capacity of the Plaintiff, brought about by the injuries he has suffered at the hands of the negligent Defendant, is or may be productive of financial loss (Medlin (supra) at page 3). The starting point in considering this issue is to note that after the accident, apart from the period when he was on light duties, the Plaintiff has continued in employment similar in nature to that in which he was engaged prior to the accident. The Plaintiff originally returned to the maintenance section of Boral. Since then he has transferred to the Probis Scheme, in which he is a member of a team laying and connecting pipes for new houses. He is still performing that work at the present time. However, it is still important to recognise that he is restricted in the manner he performs his duties. The Plaintiff no longer has the capacity to perform all the functions that are part of his employment.
The Plaintiff has modified his techniques and work practices to take into account the problems caused by his injuries. I have already mentioned his modified technique with respect to the use of the crowbar, and the fact that he does not bend from the waist but kneels to deal with work in the trenches. He is also no longer capable of using a jackhammer or a whacker. The Plaintiff continues to have difficulties walking on uneven ground. He cannot sit for long periods. Furthermore, he cannot perform some functions with the same efficiency that he could before the accident.
It is the Plaintiff’s preferred position that he continues to work. Mr Taylor, from the Human Resources Department of Origin Energy (the company which took over from Boral Energy), said that at the time of trial he was not aware of any plans to reduce the number of employees employed in new work, maintenance, and mains replacement. Furthermore, he said that he was not aware of any plan to retrench or terminate the services of the Plaintiff.
It is in this context, as I have outlined it, that the Plaintiff’s damages claim for future loss of earning capacity needs to be evaluated.
At the time of trial, the Plaintiff was fifty years of age. Therefore, he has a further fifteen years of working life available to him. It is necessary to consider the medical evidence regarding what the future holds for the Plaintiff with respect to his injuries. Dr Saies indicated that the ongoing tendonitis (pain, discomfort and restriction), in the Plaintiff’s shoulder, related to the work he was attempting to perform. Some of the activities the Plaintiff engages in during the course of his work cause ongoing rotator cuff irritation and tendonitis. Dr Saies was of the opinion that heavier aspects of his work produced the shoulder pain and reduced capacity. In his opinion, heavy lifting and the use of the crowbar, irrespective of how the Plaintiff uses the crowbar, are some of the activities which aggravate his shoulder. The activities cause the tendon to become inflamed and swollen and it impinges against the bone above the tendon.
Dr Osti’s evidence was that the Plaintiff should restrict his exposure to heavy physical work because such work is likely to initiate or increase pain and discomfort in the Plaintiff’s back. He said that if the Plaintiff has been engaging in heavy repetitive work, even if some of his work practices have been modified, then that was slightly beyond his recommended guidelines. It was Dr Osti’s advice to the Plaintiff that he should undertake work of a lighter capacity. I have already indicated that I accept Dr Osti’s opinion that the level of disability in the Plaintiff’s back is a moderate one. I also accept his opinion regarding the type of work he should be undertaking. This medical evidence raises for consideration the question of whether the Plaintiff will be able to continue to work at the present level for the remainder of his working life.
That question is but one of a number of matters which need to be considered in determining whether the diminution of the earning capacity of the Plaintiff will become productive of financial loss. I would have thought that it was beyond dispute that if the Plaintiff’s current employment came to an end, for whatever reason, the likelihood of the Plaintiff obtaining further employment would be remote. He is a man who has only known heavy physical work during his working life. He does not read English. The Plaintiff has a limited education. He was educated in Malta, leaving school at about the age of twelve. He completed an apprenticeship in Malta with a builder. Since arriving in Australia at the age of twenty one years he has been employed in the gas company by SAGASCO, Boral Energy, and Origin Energy in succession. He is a person whose skills are confined to work of a heavy nature and he carries the baggage of ongoing pain, discomfort and restriction to his shoulder and back.

If the Plaintiff loses his job, then his diminution in earning capacity would almost certainly be productive of financial loss. It is therefore necessary to assess the degree of probability that such an event might occur (Malec v J.C. Hutton Pty Ltd (supra) at 643).
The medical evidence does not offer direct assistance regarding this question. However, what the medical evidence does indicate, is that whilst the Plaintiff continues to be engaged in heavy work, he will continue to suffer pain, discomfort and restriction of movement. The older the Plaintiff becomes, the more difficult it will be for him to cope with these problems. The Plaintiff’s lower back has already reached a level where on some days the Plaintiff is struggling with back pain towards the end of the day and needs to seek relief when he arrives home. His current work activities are above the capacity at which Dr Osti thinks he should be functioning at the present time. His shoulder continues to give him trouble. All of these factors, in my view, lead to the conclusion that the Plaintiff is likely to eventually succumb to his physical problems and cease work at some time in the future.
In addition to this, there are other factors which need to be taken into account in determining the degree of probability that the Plaintiff’s injuries may lead to cessation of his employment. His reduced capacity to perform his duties as part of the team, in my view, make him more vulnerable to dismissal by his employer. Whilst he is presently able to perform many of the functions required of him at work, it is likely that the older he gets, the more difficult it will be for him to perform those functions. Even now he is restricted in the duties he can perform. Furthermore, his ability to continue work at his current level is important in the context of the team’s earning capacity. If his performance falls away further then it is possible that his and Joey Vassallo’s income could be reduced, remembering that the level of income is performance based. The possibility remains that Joey Vassallo will become dissatisfied with the Plaintiff’s performance and make that known to their employer. In such circumstances, the Plaintiff’s employment is likely to come under threat. Furthermore, it is also possible that restructuring by his employer may lead to his employment being placed under threat. Whilst there is no thought on the part of Origin Energy to restructure at the present time, restructuring has occurred during the Plaintiff’s time with the gas company. In an age where companies are always looking for the competitive edge, restructuring is not a matter which can be overlooked.
For all these reasons, I am of the opinion that there is a high degree of probability that the Plaintiff’s injuries will lead to the cessation of his employment. On that occurring, the probability is also high that he will not be able to obtain any other form of employment due to his diminished earning capacity. He is only suited for labouring work. In those circumstances, his diminished earning capacity will produce financial loss.
Having reached that conclusion, I need to immediately indicate that there are other factors that must be taken into account in assessing damages for the Plaintiff’s future loss of earning capacity. With respect to both the Plaintiff’s shoulder and back, there was degenerative change present at the time of the accident. Earlier, I indicated that I preferred the opinion of Dr Saies that, at some time before the Plaintiff reached sixty five years of age, there was a high degree of probability that the Plaintiff would have experienced symptomatic rotator cuff disease in his right shoulder even if the accident had not occurred. Dr Saies did not indicate the degree with which such symptoms would emerge, nor whether, standing alone, the symptoms would lead the Plaintiff to cease his current employment.
With respect to the Plaintiff’s back, it was agreed by both Dr Osti and Dr Fraser that degenerative changes were present at the time of the accident. Those degenerative changes were said by Dr Osti to be mild in nature. Dr Fraser did not disagree with this opinion. The medical evidence does not indicate that the degenerative changes would have become symptomatic in the course of time. However, it is necessary to take into account the possibility that the degenerative changes may have become symptomatic due to natural progression. Furthermore, it cannot be ignored that the problem may have become symptomatic due to non-tortious trauma occurring to the Plaintiff during the remainder of his working life.
The degree of probability that the shoulder or back or a combination of both would have led to the Plaintiff terminating his employment before retiring age if the accident had not occurred needs to be considered in assessing damages.
The Plaintiff’s gross income for the year ended 30 June 2000 was $44,254. He had a net income after taxation had been deducted of $31,151. The gross income included a base rate of pay, together with bonus payments earned. The Plaintiff’s base rate of pay at 3 September 1999 was $28,182. At 15 October 1999 the Plaintiff’s base rate of pay was $32,000. The number of imponderables requires the assessment to be a broad axe one in nature. These figures only give some indication of the level of income which may be lost to the Plaintiff if his employment ceases in the future. In considering the Plaintiff’s loss I also need to take into account the possibility that his base salary is likely to increase. The evidence indicates that a regular increase in the Plaintiff’s base salary has occurred in the last seven financial years. His base salary has increased twice since he became employed under the Probis Scheme.
In my opinion the nature of the Plaintiff’s work would have seen him retire before he reached sixty five years of age. It is likely that the degenerative conditions of the Plaintiff’s shoulder and back would have hastened the Plaintiff’s decision to retire before the age of sixty five. On my findings the injuries he suffered have further shortened his working life. I say that in the context of my previous findings and the view I take that he is unlikely to obtain any other form of employment if his current employment ceases. To what extent his working life will be shortened is one of the imponderables involved in the assessment. In making the assessment it is also important to recognise that it involves the determination of the present value of a future loss. Finally, I also need to take into account the role the vicissitudes of life may play when considering the period of time that the Plaintiff would have been likely to have continued to work in his current employment.
The assessment cannot be undertaken with any degree of precision. As I stated earlier, a broad axe approach is required. The comments of Justices Brennan and Dawson in Malec v J.C. Hutton Pty Ltd (supra) at 640 are apposite:-
“Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation.”
I assess the Plaintiff’s damages for future loss of earning capacity at $40,000.

Claim for Voluntary Services

The Plaintiff claims damages for provision of voluntary services by the Plaintiff’s wife, Katie Sghendo, during the period of the Plaintiff’s convalescing following surgery on his shoulder. Mrs Sghendo said in evidence that, during the period when the Plaintiff was recovering from the shoulder surgery, she had to do most of the work that the Plaintiff normally assisted her in performing about the house. She said that prior to this time he always assisted her with washing the dishes and vacuuming the carpets, but that he could not do these chores during that period of time. The Plaintiff sought compensation for his inability to assist his wife. The claim must be rejected. The Plaintiff’s inability to assist his wife in the type of work she described cannot found a claim for damages for provision of voluntary services.
In addition to that evidence, Mrs Sghendo said that after the Plaintiff’s surgery she had to attend to the Plaintiff at home. She said she could not remember for what period she looked after the Plaintiff after the surgery. She did not describe the services she provided to the Plaintiff. In his evidence the Plaintiff said that his wife provided him with assistance. He said she used to look after him, even when he went to have a wash. He said she would help him to wash his back “. . . and things like that.” Whilst there is very little detail to support this claim there is sufficient evidence to make a modest award. I assess damages for voluntary services at $150.

Claim for Future Medical Expenses

I turn to the final head of damages claimed by the Plaintiff, namely, cost of future medical expenses. Dr Osti said that he had suggested to the Plaintiff that he consider an injection in his lower back called rhyzolysos. It is a pain relief treatment which is temporary in nature but, if successful, may give relief for a period of a year or a year and a half. If such treatment is successful in that the patient experiences significant relief for up to six months, then it can be repeated. Whilst the Plaintiff has not taken up the offer to undergo this treatment, it is necessary to consider the probability that he may do so at some time in the future. He received injections from Dr Hillier during the time he was consulting with him. Rhyzolysos is a different form of treatment to that provided by Dr Hillier. The probability is that if the Plaintiff continues to suffer discomfort at the level that he described on some occasions when he has returned home from work, he may take up the option of receiving this treatment. I do not think the probability is particularly high, but it is sufficiently high to make a modest award. Dr Osti said that the cost of the treatment is somewhere between $1,000 and $2,000. Whether the Plaintiff would undertake more than one treatment would depend upon the relief that the Plaintiff receives from the initial treatment. However, that probability needs to be taken into account. As I said, only a modest award is called for. I assess damages for future medical expenses at $500.
By way of summary, I assess the Plaintiff’s damages as follows:

·.. Pain and suffering and loss of enjoyment and amenities of life $ 18,850

·.. Past loss of earning capacity $ 9,700

·.. Future loss of earning capacity $40,000

·.. Provision of voluntary services $ 150

·.. Future medical expenses $ 500

$69,200

The Plaintiff’s damages are assessed at $69,200. There will be judgment for the Plaintiff against the Defendant for that amount.

I will hear the parties regarding interest and costs.

[2001] SADC 19

21 February 2001